I was recently asked to speak about employment law issues at a conference for human resource professionals. Registrants were polled in advance about what they’d like covered, and “DEI” was a top response. (DEI stands for “Diversity, Equity, and Inclusion;” DEI means . . . well . . . the definition of DEI is part of the point of this article, so let’s hold that thought for now.) I assume this was because Students for Fair Admissions v. Harvard had been in the news at the time. Covering such a wide, complicated, and controversial topic in a seminar is always a challenge. Rather than give an intellectual law school lecture, or a mushy, lukewarm overview, I tried to focus on practical applications. The discussion was passionate and fruitful, and I thought it resulted in a good matrix for evaluating your existing DEI program, or thinking about implementing one. I hope you agree.
First, I asked the audience by show of hands, who agreed that the following were correct and important principles of employment law, workplace management, and life in general:
- Don’t make goals you can’t measure.
- Don’t use words unless your audience knows what they mean.
- When hiring, managing, or firing employees, focus on workplace abilities and outcomes.
- Don’t be racist.
- Don’t appear to be racist.
- Make business decisions based on business criteria.
- Don’t say you are going to do something that you are not going to do.
- Be wary that directions can be distorted as they are transmitted and translated down the chain of command.
- If you give a subordinate a goal, you should expect that subordinate to at least try to accomplish it.
Unsurprisingly, everyone in the audience agreed with these principles.
These principles are mostly common sense. Many of them are embodied in the statutes we consider when avoiding illegal workplace discrimination. For example Title VII of the Civil Rights Act says “It shall be an unlawful employment practice for an employer – (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” The Minnesota Human Rights Act also prohibits discrimination in employment based on race, religion, disability, national origin, sex, marital status, familial status, age, sexual orientation, and gender identity.
I’ve never heard of a DEI program that was intended to violate any of these principles or laws. Then again, I’ve never had an employer tell me that they intended to violate any employment law, or that they intended to make a bad business decision. And yet the real and alleged violations of employment law keep me, and thousands of lawyers like me, in business. So how can a program intended to adhere to the law, and achieve socially acceptable ends, result in litigation? Let’s go back to my seminar:
I next asked who did and did not have a DEI or similar program in their workplaces. In the audience of about 60, about half the employers had such programs. I then returned to those who had DEI programs and asked, “What does DEI mean according to your program?”
Most of the answers were something like this: “DEI means hiring and retaining a workforce with diverse backgrounds, skills, and experiences; eliminating barriers to workers; and making sure all workers are valued.” Of the 30 or so responses, none of them included any explicit mention of race. Many of them proactively volunteered something like “diversity does NOT mean racial diversity; it only means diversity of life experience and worldview.”
I then went back around to each respondent and asked “what does DEI mean to your middle managers who are tasked with implementing this program; and how do you know what it means to them?”
To the first part of the question, the HR managers in the audience were quite confident that their middle managers had the same definition. Regarding the follow-up (how do you know they define it like you do?) answers were much more . . . diverse, with most of the audience acknowledging that they were at least less-than-confident that middle managers properly understood the company’s definition of DEI.
Then I asked, “Who here is 100% confident that not a single one of your middle managers thinks that DEI means changing the racial makeup of your work force?” No hands were raised.
Finally I asked “What does DEI mean to your lowest level employees?” and “What does DEI mean to your applicant pool?” Answers ranged from “I have no idea” to “they probably think it means hiring fewer white people.”
At this point, an attendee who was VP of HR for the biggest employer in the room, broke in with the following: “Ya know, in reality I think the purpose of the DEI program in my company is to do absolutely nothing other than to make it look like we’re doing something about DEI. And I think every employee in the company knows it. We have a committee; I’m on it; some of the best paid executives in the company are on it; and seriously, it does nothing.”
We then did what this article will do now: consider these answers in light of our agreed-upon principles. As you’ll see, there are few clear answers below, only more questions to ponder:
1. Don’t make goals you can’t measure.
Even if diversity simply means “diverse life experiences and worldviews,” is that a goal you can measure? Can we measure the diversity of having grown up in a foreign country and compare it to the diversity of having a psychology degree, or the diversity of having served in the military? Can we even collect all of the information that would make one workforce more diverse than another; or that would help us decide which candidate better serves the goals of DEI? It would seem that a DEI program hat is not directly discriminatory would fail to satisfy this principle.
2. Don’t use words unless your entire audience knows what they mean.
By their own admission, some these professionals’ DEI programs were violating this principle. At best the audience admitted that they didn’t really know if they were complying with it because they could not be sure that when their company said “DEI” that their managers, workers and applicants all understood what it meant.
3. When hiring, managing, or firing employees, focus on workplace abilities and outcomes.
Many employers make a good argument that multiple perspectives and a diversity of skills and experiences make a better workforce and workplace. So, if implemented as intended, most DEI programs would satisfy this criteria. But if that’s the case—if the principles of DEI are simply what makes a good employee—then is DEI even a thing? Isn’t it just part of hiring the best employee? Is “diverse life experiences and worldview” just another bona fide job qualification that should appear on the job description or want-ad like any other hiring criteria?
4. Don’t be racist.
Certainly, none of the HR professionals in the audience, and no advocate for DEI programs, would intend for their programs to discriminate on the basis of race. But what about those middle managers who may or may not have the same understanding of what is meant by DEI? Might they think that they are being told to alter the racial composition of the workforce? Most managers understand that, if given a goal, it’s their job to achieve it. Might they be tempted to deliver measurable, observable results in a way that risks legal liability?
5. Don’t appear to be racist.
Again, we have a clear admission from some of the audience that—from miscommunications, misconceptions, or some other factor—they were clearly violating this factor, in that at least some of their workforce and audience perceived their DEI program as including race-based hiring. Fear about miscommunication shouldn’t get in the way of an otherwise important program or goal. But an employer who has a concern about miscommunication or misinterpretation should make clarity of purpose an important sub-goal of any such program.
6. Make business decisions based on business criteria.
Most of the audience said that their workplaces do benefit—in terms of increased productivity and employee wellbeing—from an environment made up of workers with diverse life experiences and worldviews. If that is accepted as fact, then these DEI programs don’t violate this principle. But if DEI is simply added to the criteria of how a company defines a good employee, doesn’t that mean that some other time-tested criteria is removed from that calculus, or at least demoted? In economics, it is often said that “there are no solutions; only trade-offs.” If a company has five existing criteria for lawfully discriminating between potential hires, and it then adds a sixth criteria—in this case “diverse life experiences and worldviews,”—doesn’t it have to at least diminish the importance of the five pre-existing criteria?
7. Don’t say you are going to do something that you are not going to do.
Obviously, the company of the VP who spoke up is violating this principle, at least in her opinion. She is not alone. Another client of mine once relayed that he was assigned to the “Diversity Committee” of a previous employer (a suburban municipality), and was explicitly told “your job on this committee is to make sure that nothing ever comes out of this committee.” That, of course, is an extreme example. However, many employers seem to think they can obtain the benefits of a DEI program without courting the risk involved with actually taking action. I don’t think these companies are actually playing it safe.
Litigation arises out of the delta between expectations and outcomes. Inert DEI programs are courting two types of risk. Some potential plaintiffs will be disappointed if they came to the workplace expecting a greater level of support. Another group of potential plaintiffs will have been lawfully discriminated against—for poor performance for example—and will be tempted to blame their outcomes on the DEI program. You wouldn’t tolerate a non-functional fire extinguisher in your workplace, or a provision in your employment handbook that is no longer relevant. Don’t tolerate an inert program or committee either.
8. Be wary that directions can be distorted as they are transmitted and translated down the chain of command.
Again, many in the audience admitted that this phenomenon was taking place in their workforces. Keep in mind that most of your workforce will think about DEI rarely in the workplace; they have product to make, they are turning wrenches, processing invoices, and doing the core work of the company. Even if they are given a completely accurate depiction of your lawful DEI program twice a year in a PowerPoint slide deck, how often do they hear in media other versions of what DEI actually means? Even if your company’s DEI policy explicitly prohibits racial discrimination, will your employees understand that, or will they adopt the understanding of the last pundit they watched on cable news?
If you have a DEI program, you need to explicitly tell your employees: “There are thousands of different DEI programs and definitions of DEI; the only one that matters to you is OUR program. Forget what you’ve heard about other ones.”
9. If you give a subordinate a goal, you should expect that subordinate to at least try to accomplish it.
In terms of legal liability, this might be the most important principle to consider. The ambition and ardor of your middle managers is both an asset and a threat. If you tell them that DEI is an important goal of the company, you should expect them to believe you, and to pursue that goal. Even if they are not dyed-in-the-wool company people, their own interests will encourage them to accomplish the company’s goal for promotion and raises. They will be driven to deliver observable results. There will be a temptation for your middle managers to stray from legitimate and legal DEI measures into illegal discrimination.
Your DEI program should include lawful objectives and make it clear that managers will not be evaluated on illegal ones. A lawful objective might include: “Each job posting will be published in a manner calculated to get exposure to historically under-represented communities.” But then make it clear that the manner of posting is the measured objective; not the racial makeup of respondents or hires.
Summary: Risk/Reward Analysis.
None of the above stands for the proposition that DEI programs are illegal or that they need to be avoided.
Even the core functions of a company—a bank loaning money; a farm driving a quad-track down a county road; a metal shop operating a plasma torch—present risk including financial, physical, and legal risks. Those risks are taken on only after the company determines that the reward outweighs the risk. Then, the risks are mitigated with lending standards, hazard lights, and fire extinguishers. Even then, employers never deceive themselves into believing that the risk is zero.
The same should go for DEI. DEI, or any program, should be undertaken only if it serves the lawful purposes of the company. Then the risks of such a program should be evaluated, and those risks should be undertaken only if the value outweighs them. Then safeguards should be put in place to minimize known risks. Finally, it should be remembered that there is no such thing as a risk-free activity, even if that activity is undertaken for noble ends.
